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Kavanaugh's hearing: The most momentous 'he said, she said' showdown of our time

Thursday's scheduled hearing on Christine Blasey Ford's allegation of sexual assault against Brett Kavanaugh...

Posted: Sep 27, 2018 1:03 AM
Updated: Sep 27, 2018 1:03 AM

Thursday's scheduled hearing on Christine Blasey Ford's allegation of sexual assault against Brett Kavanaugh promises to be the most momentous "he said, she said" contest of our time. Her word will be pitted against his, forcing senators — and a nation judging from the sidelines — to decide whom to believe.

Kavanaugh's past statements make him vulnerable to what would, in criminal court, constitute a devastating cross-examination. But it remains to be seen whether Rachel Mitchell, the sex crimes prosecutor hired by the Republicans to act as their surrogate, will pursue obvious lines of inquiry, or whether she will instead leave this work entirely to the Democrats. Regardless, many onlookers will bemoan the difficulty of resolving the dispute, which will be made to seem like an intractable feature of sexual assault accusations.

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In fact, the opposite is true. Quite often, sexual violence need not culminate in a word-on-word duel. The notion that "he said, she said" is the hallmark of these cases is a myth, and a dangerous one at that. We see this most clearly if we look, not at the political calculations involved on both sides, or even at the FBI investigation of Anita Hill's allegations against Clarence Thomas decades ago. Notwithstanding the extraordinarily high stakes of this particular allegation, the reaction to it closely resembles law enforcement's response to everyday sexual violence.

As I have detailed in a recent paper, we see a recurring pattern in the police response to sexual assault allegations. Investigations that could be supported by additional evidence are prematurely cut short. As a routine matter, police officers promptly disregard women's reports of sexual violence — a phenomenon I call "credibility discounting" — leading investigators to overlook the potential availability of corroborative evidence.

When an accusation is fresh, corroborative evidence can include electronic evidence like texts, voice mails, photographs or social media posts, forensic reports, witnesses to the lead-up or aftermath, and, on rare occasion, eyewitnesses to the charged incident. Older allegations like the one that bears on Kavanaugh's nomination are of course far more difficult to corroborate. Even so, many of the same investigative techniques could still be brought to bear on the task of gathering relevant evidence.

In Kavanaugh's case, the decision by Senate Republicans to curtail an investigation before all avenues have been exhausted is a familiar one. This is a commonplace law enforcement maneuver. And it usually means the case goes nowhere. The vast majority of sexual assault allegations reported to police never result in an arrest, much less a prosecution or conviction. Across the country, in departments big and small, police officers are reflexively truncating investigations into allegations of sexual violence.

This has an enormous impact on survivors' willingness to come forward. According to recent Justice Department estimates, the population most vulnerable to sexual assault, females ages 18-24, reported incidents of rape or sexual assault to police at rates of only 20% among college students and 32% among non-college students. Women of color, both on and off campus, may be even less likely to report sexual assault than their white counterparts. Survivors of sexual assault rightly perceive the pervasiveness of credibility discounting and, in many more cases than not, opt to keep their credibility from ever being judged.

To be sure, despite the best efforts of investigators, some cases require a fact finder to decide, without any corroborative evidence, which among two competing accounts to believe. To choose between the conflicting narratives, the fact finder might look at each party's motivations to lie or be truthful, the internal consistency or inconsistency of each story, each person's ability to perceive and recall, and each person's record of past truthfulness or untruthfulness. Fact finders also evaluate credibility by applying their understanding of the ways the world operates, which is a problem when that understanding is inaccurate.

Unfortunately, Thursday's hearing will lack the added corroboration that can make it easier to weigh credibility. In an effort to prevent this very scenario, Ford — not Kavanaugh — asked for a neutral FBI investigation. Ford — not Kavanaugh — asked that Mark Judge, Kavanaugh's high school friend, be subpoenaed to testify. So it is especially galling that Ford — not Kavanaugh — will probably be penalized for a perceived shortage of evidence.

Accusers do not tend to fare well in word-on-word clashes. As I have described, skepticism of sexual violence complaints has shape-shifted over time. Yet it remains firmly lodged. The staying power of credibility discounting is a notable feature — perhaps even the dominant feature — of our response to rape.

This may be changing. The #MeToo movement is challenging a societal default to doubt, and the past year has brought undeniable progress. Yet even as sexual misconduct complaints are met with newfound receptivity, it is worth noting that lone accusers continue to bear a special burden. (It seems unlikely that Senate Republicans will ask the FBI to investigate two other accusers' reports against Kavanaugh, or even that they will be asked to testify before the Judiciary Committee.)

Many survivors of sexual violence are deterred by the likelihood of a swearing contest. But Ford — in the face of death threats — has agreed to appear before the committee. She walks into a "he said, she said" showdown that could well have been avoided, one in which the deck has already been stacked against her.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 343505

Reported Deaths: 7543
CountyCasesDeaths
Hinds23932444
DeSoto23229283
Harrison20527329
Rankin15411291
Jackson15232252
Madison10959227
Lee10719179
Jones9047169
Forrest8723159
Lauderdale7884244
Lowndes7054151
Lamar702989
Lafayette6548124
Washington5595139
Pearl River5196152
Bolivar4954134
Oktibbeha494398
Panola4771112
Warren4728128
Marshall4701106
Pontotoc447773
Union433279
Monroe4330137
Neshoba4281181
Hancock428088
Lincoln4176116
Pike3667113
Leflore3627125
Tate353388
Alcorn350974
Sunflower347694
Scott341176
Adams340988
Yazoo339376
Copiah324968
Simpson322891
Itawamba314680
Coahoma314085
Tippah306568
Prentiss298863
Covington293484
Leake285475
Marion284181
Wayne277543
George272251
Grenada269488
Newton262364
Tishomingo239770
Winston236784
Jasper230648
Stone229637
Attala226373
Chickasaw219060
Holmes200174
Clay197654
Clarke186880
Tallahatchie183742
Calhoun181332
Smith179235
Yalobusha171540
Walthall145748
Lawrence142826
Greene140134
Amite137543
Noxubee135235
Perry133538
Montgomery133044
Carroll126431
Webster121232
Jefferson Davis116734
Tunica114227
Benton106725
Claiborne105331
Kemper102429
Humphreys100133
Franklin87923
Quitman84719
Choctaw82619
Wilkinson78032
Jefferson71328
Sharkey51618
Issaquena1736
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Alabama Coronavirus Cases

Cases: 585607

Reported Deaths: 11536
CountyCasesDeaths
Jefferson851431591
Mobile48584864
Madison37411533
Shelby27192257
Tuscaloosa27145465
Montgomery26119627
Baldwin25207329
Lee17184181
Calhoun15382334
Morgan15147291
Etowah14928370
Marshall13079235
Houston12021293
Elmore10890219
St. Clair10737252
Limestone10699158
Cullman10503205
Lauderdale10240254
DeKalb9498192
Talladega8935188
Walker7775288
Autauga7537114
Jackson7384117
Blount7352139
Colbert6691142
Coffee6342132
Dale5605117
Russell478943
Chilton4763117
Covington4738125
Franklin456681
Tallapoosa4511156
Escambia439283
Chambers3936125
Dallas3742163
Clarke370563
Marion3455107
Pike332079
Lawrence3257100
Winston298373
Bibb289765
Geneva282883
Marengo262267
Barbour250661
Pickens245262
Butler240172
Hale235178
Fayette226765
Henry212845
Monroe201541
Randolph200344
Cherokee198848
Washington184339
Macon169752
Crenshaw167758
Clay165659
Cleburne161145
Lamar150938
Lowndes145355
Wilcox132331
Bullock126542
Conecuh120632
Coosa118129
Perry110328
Sumter110333
Greene99137
Choctaw64425
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